CASE OF GLONTI AND OTHERS v. GEORGIA

FOURTH SECTION

CASE OF GLONTI AND OTHERS v. GEORGIA

(Application no. 13708/18)

JUDGMENT
 

STRASBOURG

11 February 2025

This judgment is final but it may be subject to editorial revision.

In the case of Glonti and Others v. Georgia,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Jolien Schukking, President,
 Faris Vehabović,
 Lorraine Schembri Orland, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 13708/18) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 March 2018 by five Georgian nationals (“the applicants”), whose relevant details are listed in the appended table and who were represented by Ms N. Jomarjidze, a lawyer practising in Tbilisi;

the decision to give notice of the complaints under Article 6 §§ 1 and 3 (a) and (b) of the Convention to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 21 January 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged unfairness of criminal proceedings against the applicants in view of the reclassification of the offence by a court at the last stage of the appeal proceedings, and the non‑disclosure of certain documents and information on which an important piece of prosecution evidence was allegedly based. The applicants relied on Article 6 §§ 1 and 3 (a) and (b) of the Convention.

2.  On 20 June 2014 a criminal investigation was initiated under Article 332 of the Criminal Code (offence of abuse of office, cited in paragraph 8 below) in connection with the circumstances of a major procurement call launched earlier by the Ministry of the Defence. On 22 October 2014 the offence was reclassified to embezzlement (offence under Article 182 of the Criminal Code, see ibid.). On 29 October 2014 the applicants, who had held various positions in the Ministry of the Defence at the material time, were charged with aggravated embezzlement committed by a group in large amount through the abuse of power, an offence under Article 182 §§ 2 (a) and (d) and 3 (b) of the Criminal Code (see ibid.) and were placed in pre-trial detention.

3.  On 19 June 2015 the applicants were released on bail. On 16 May 2016 the Tbilisi City Court found the applicants guilty as charged. They were immediately taken back into custody. The court established that the applicants had been in a charge of organising a call for tenders during which they had embezzled 4,102,872.60 Georgian laris (GEL). Among other evidence, the court relied on a multi-disciplinary forensic examination report no. 01/348, which aimed at establishing the difference between the market value of the assets delivered by the successful company following the completion of the project and the amount the Ministry of the Defence had agreed with the company to pay for the project. Despite the defence’s requests, several documents on the basis of which the above-mentioned forensic report was prepared were not disclosed to the defence. The Tbilisi City Court sentenced the applicants to seven years’ imprisonment each.

4.  On 26 January 2017 the Tbilisi Court of Appeal modified, of its own motion, without allowing for further argument, the conviction on appeal, reclassifying the offence of embezzlement into abuse of office. The court concluded that the prosecution evidence did not support one of the constituent elements of the crime of embezzlement – control over the assets to be embezzled – and that, therefore, the conviction under Article 182 of the Criminal Code could not be upheld. As regards the fact that the applicants were not given an opportunity to defend themselves against the new legal classification of the offence, the court of appeal held that the reclassification did not prejudice the fairness of the proceedings given that the reformulation of the charges had not introduced any new element of fact on which the applicants had not had an opportunity to argue before the trial and appeal courts. In addition, the appeal court noted that the applicants would have an opportunity to appeal against the judgment with the Supreme Court. The court reduced their sentence to a year and six months in prison.

5.  On 24 February 2017 the applicants lodged an appeal on points of law with the Supreme Court. In their appeal they argued, inter alia, that the reclassification of the offence by the court of appeal and the non-disclosure of the documents on which the key forensic report was based had prevented them from properly exercising their defence rights.  On 14 September 2017 the Supreme Court of Georgia refused to grant leave to their appeal on points of law. As to the reclassification of the offence, the court observed that the factual basis for both offences was similar and that the Tbilisi Court of Appeal had changed the legal classification of the applicants’ initial charge without introducing any new element of fact. In such circumstances, and inasmuch as the change had been effected in favour of the applicants, the Supreme Court was not expected to allow the parties to discuss the new legal classification of the crime.

6.  On 27 January 2017 the President of Georgia granted a pardon to all of the applicants, which included the commutation of their sentence and the expungement of their convictions. The applicants were released from prison on the same day.

7.  Relying on Article 6 §§ 1 and 3 (a) and (b) of the Convention, the applicants complained that the reclassification of the offence by the court of appeal and the non-disclosure of important prosecution evidence to the defence had rendered their trial unfair.

8.  The relevant Articles of the Criminal Code read as follows:

Article 182. Misappropriation and embezzlement

“1. Misappropriation or embezzlement of another person’s property or property rights by a person who had that property or property rights in his lawful possession or control ...

2. Any such acts committed

a. by a group of persons [acting] upon their prior conspiracy ...

d. through the abuse of office ...

3. Any such actions governed by paragraphs 1 and 2 of this Article ...

b) if committed in respect of a large amount ...

... shall be punishable by imprisonment for a term from seven to eleven years, and a bar on holding public office or engaging in professional activities for a period of up to three years.”

Article 332. Abuse of office

“1. Abuse of office by an official or person of equivalent status, to the detriment of public interests and in order to gain any personal benefit or privilege, or any benefit or privilege for another person, which has substantially affected the rights of a natural or legal person, or the legal interests of society or the State, shall be punishable by a fine or a term of up to three years’ imprisonment, and a bar on holding public office or engaging in professional activities for a period of up to three years.

...”

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (a) and ( b) OF THE CONVENTION

9.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

10.  The applicants pointed out that they had never defended themselves against a charge of abuse of office because they had not been indicted on such a charge. They further submitted that the major findings of the forensic report, on which their conviction had heavily relied, were based on undisclosed materials and information, undermining the completeness and reliability of the report itself.

11.  The Government submitted that at the very outset the investigation had started under Article 332 of the Criminal Code into the criminal offence of abuse of office. Thus, the potential alternative legal characterisation of the impugned facts had been known to the applicants. They also pointed out that the fact that the applicants had been charged and convicted at first instance with aggravated embezzlement committed through the abuse of power, rendered their offence very similar to that of abuse of office. As regards the forensic report, the Government argued, among others, that it was by no means the decisive evidence for establishing the applicants’ guilt.

12.  Starting with the first limb of the applicants’ complaint concerning the reclassification of the offence, the general principles concerning the right to be informed of the nature and the cause of an accusation, including its legal characterisation, and the accused’s right to prepare his or her defence have been summarised in Pélissier and Sassi v. France ([GC], no. 25444/94, §§ 51‑54, ECHR 1999-II) and Penev v. Bulgaria (no. 20494/04, §§ 33-34 and 42, 7 January 2010; see also I.H. and Others v. Austria, no. 42780/98, § 34, 20 April 2006).

13.  The Court notes that the indictment, setting out the factual and legal basis of the charges against the defendant, plays a central role in criminal proceedings (see Kamasinski v. Austria, 19 December 1989, § 79, Series A no. 168, and Varela Geis v. Spain, no. 61005/09, § 51, 5 March 2013). In the present case, the applicants were charged with aggravated embezzlement only (see paragraph 2 above). Embezzlement and abuse of office are different offences under Georgian criminal law and the elements which have to be proven to secure a conviction differ (see paragraph 8 above). Thus, in case of abuse of office one of the constituent elements of the offence is the intent “to gain any personal benefit or privilege, or any benefit or privilege for another person”, whereas such an element is not inherently part of the offence of embezzlement (see, mutatis mutandis, Adrian Constantin v. Romania, no. 21175/03, § 23, 12 April 2011, and Gelenidze v. Georgia, no. 72916/10, § 33, 7 November 2019). In this connection, the Court does not accept the Government’s contention, relied on by the national courts (see paragraphs 4‑5 above) that the legal characterisation of the offence was of little importance as long as the amended conviction was based on the same facts. It reiterates that the Convention requires that the accused be informed in detail not only of the acts he or she is alleged to have committed, that is, of the facts underlying the charges, but also of the legal characterisation given to them (see Penev, cited above, § 42, and D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 80, 24 July 2012). Throughout their trial, the applicants defended themselves against the charge of embezzlement only. Ultimately, the Tbilisi Court of Appeal found that charge unproved, since one of the constituent elements of the crime – control over the assets to be embezzled – was missing (see paragraph 4 above). Prior to rendering a new judgment, the Tbilisi Court of Appeal did not warn the applicants that their offence could be requalified (see paragraph 4 above). The hearing was not adjourned for further argument and the elements of the new offence were not debated in court (see Gelenidze, cited above, § 35; see also Penev, cited above, § 43). The applicants only learned of the new legal characterisation of the facts in the appellate court’s judgment. In such circumstances, while the Court accepts that the appeal court had jurisdiction to reclassify the offence, it should have afforded the applicants the possibility of exercising their defence rights on that issue in a practical and effective manner and, in particular, in good time.

14.  The Court cannot speculate as to the merits of the defence the applicants could have relied on had they had an opportunity to make targeted submissions on the offence of abuse of office of which they were eventually found guilty. However, they should have been afforded an opportunity to do so.

15.  Accordingly, the Tbilisi Court of Appeal did not afford the applicants the possibility of adjusting their defence to the new charge. As for the Supreme Court, which could have reviewed the case in full, it failed to remedy the defects of the appeal proceedings by rejecting the applicants’ appeal on points of law as inadmissible (see Juha Nuutinen v. Finland, no. 45830/99, § 33, 24 April 2007; contrast Dallos v. Hungary, no. 29082/95, §§ 50-52, ECHR 2001-II, and Sipavičius v. Lithuania, no. 49093/99, §§ 31‑32, 21 February 2002).

16.  In view of the above findings, the Court concludes that the applicants’ right to be informed in detail of the nature and cause of the accusation against them and their right to have adequate time and facilities for the preparation of their defence were infringed. There has accordingly been a violation of Article 6 §§ 1 and 3 (a) and (b) of the Convention in that respect.

17.  As to the second limb of the applicants’ complaint, which concerned the alleged non-disclosure of important prosecution evidence to the defence, the Court considers that it has examined the main legal question raised in the present application and that there is no need to give a separate ruling on the merits of that complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 11 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Simeon Petrovski Jolien Schukking
 Deputy Registrar President

APPENDIX

List of applicants:

Application no. 13708/18

No.

Applicant’s name

Year of birth

Nationality

Place of residence

1.

Gizo GLONTI

1965

Georgian

Tbilisi

2.

Giorgi LOBZHANIDZE

1981

Georgian

Tbilisi

3.

Davit TSIPURIA

1972

Georgian

Tbilisi

4.

Archil ALAVIDZE

1968

Georgian

Tbilisi

5.

Nugzar KAISHAURI

1965

Georgian

Tbilisi